Cole v. Ellwood Power Co. , 216 Pa. 283 ( 1907 )

Opinion bv

Mr. Justice Elkin,

Three questions are raised by this appeal, first, had appellee such an interest in the rocks and bowlders as to entitle him to compensation when appropriated; second, if his right to quarry was limited as to time, had notice to terminate the lease been served before the entry of appellant, and third, what was the proper measure of damages ? It is contended for appellant that the right claimed by appellee in the quarry, is an interest in land, without limit as to time and within the statute of frauds. If this principle can be successfully invoked there can be no recovery, because the contract relied on to assert an interest is in parol. Yeakle v. Jacob, 33 Pa. 376 ; Neumoyer v. Andreas, 57 Pa. 446 ; Pattison’s Appeal, 61 Pa. 294 ; Bowers v. Bowers, 95 Pa. 477 and Miller v. Zufall, 113 Pa. 317 are cited in support of this contention. These cases all relate to contracts for the sale of standing timber and the rule deducible therefrom is, that when the grant is for a perpetual right to cut, or for an indefinite period in which to remove, or at the discretion of the vendee, without a view to immediate severance, it is within the statute of frauds and must be in writing. The rule in such cases has been strictly enforced. There is, however, another line of decisions of a different import, running parallel with the timber cases, and as uniformly observed. LeFevre v. LeFevre, 4 S. & R. 241; Rerick v. Kern, 14 S. & R. 267; Swartz v. Swartz, 4 Pa. 353; Ebner v. Stichter, 19 Pa. 19, belong to the latter class. In these cases the rule is recognized that if a license, or privilege, to do something on the land of the licensor, is given by parol, then followed by the expenditure of money, on the faith of the parol agreement, it is irrevocable and is to be treated as a binding contract. Equity treats the license thus executed as a contract giving absolute rights, and protects the licensee in the enjoyment of those rights. Again, in Moore v. Miller, 8 Pa. 272, this court held that a parol agreement to enter upon the land of another for the purpose of digging ore, erecting buildings and doing other necessary things in the prosecution of the work, paying for the privilege a certain fixed royalty for each ton of ore mined and removed, was a contract of lease and could be enforced. The present case comes within the rule of these decisions, and the question of the statute of frauds may be eliminated from-further consideration. It is important, however, to consider what the exact terms of the parol agreement are in order to ascertain the rights of the parties to this action. Was the privilege to quarry stone limited to the year when given, the “stone year” as suggested in the testimony of Hartman, or was it to be enjoyed for an indefinite period, or at the discretion of the licensor ? If the right was for a limited period, then it could be terminated at the expiration of that time. It is contended that it was so terminated by notice to quit before the rights of appellee had attached. These are questions of fact to be submitted to and determined by the jury under proper instructions by the court. In this connection the ruling of the court below, in not permitting duplicate notice of September 27,1900, to. be admitted in evidence and considered by the jury, is assigned as error. The offer was refused on the ground that it was secondary evidence and that the testimony did not disclose any effort to secure the original. The testimony showed that it was an exact carbon copy, made on a typewriter at the same time as the original, signed by the same officers, executed in the same manner, and in every respect was an exact duplicate. The one was served, the other remained in the possession of the owner of the land. Appellant contends, that, as both were contemporary writings, the counterparts of each other, one of which was delivered and the other preserved, they may both be considered as originals, and the one which was preserved may be received in evidence without notice to produce the one which was delivered. This contention is based on the rule of our cases and must be sustained : Eisenhart v. Slaymaker, 14 S. & R. 153; Gaskell v. Morris, 7 W. & S. 32; Morrow v. Commonwealth, 48 Pa. 305. The duplicate notice should have been admitted in evidence and the refusal so to do was error.

The court below held that the proper measure of damages was, not the value of stone in place, but the value of the stone after it had been manufactured into curbstone, and sold in the market, less the cost of preparation, transportation and royalty. With this rule as to the measure of damages, witnesses were permitted to testify how much curbstone could be cut from the bowlders and how much it would sell for in the market, what the cost of manufacturing and transporting the same would be, the difference being the measure of damages to the appellee. Ege v. Kille, 84 Pa. 333 is relied on as ruling the case. It is true that such a measure of damages was sustained in that case, but that was an action of trespass for mesne profits between private parties, each of whom claimed title to the land in dispute, and, the title of Ege having been sustained, he brought an action against Kille to recover the mesne profits during the time that Kille had possession of the land and had actually taken the ore from the mines. Coleman’s Appeal, 62 Pa. 252, and Oak Ridge Coal Co. v. Rogers, 108 Pa. 147, belong to this class of cases. In Graham v. Railroad Co., 145 Pa. 504, the distinction between the measure of damages arising out of a trespass and the assessment of damages accruing to the owner of property, taken under the right of eminent domain, was clearly pointed out. The learned counsel for appellee earnestly contends that the case at bar is an action to recover damages for a trespass. In this is the vice of his argument. This is not an action for trespass in the sense of the owner of land instituting proceedings against a person who had entered upon his property without authority of law. The appellant here had the legal right, conferred by statute, to go upon the property of appellee and to appropriate the same to its own use. The rule as to the proper measure of damages in this case is found in Searle v. Railroad Company, 33 Pa. 57; Railroad Company v. Balthaser, 119 Pa. 472 ; Fulmer’s Appeal, 128 Pa. 24, and many other like cases. The rule of these cases has never been departed from except where there had been actual severance of the coal, or ore, or stone, or other thing, the value of which was the basis of the proceedings. The proper measure of damages in this case is the actual value of the stone in place, not the prospective and speculative value of that stone when cut and sold in the market. The appellant under the law had the right to appropriate the rocks and bowlders and should pay appellee for his interest in the stone in place what that interest was worth at the time the appropriation was made. There is one item that must be treated separately in determining its value. The appellee testified that at the time of the entry there were about 500 or 600 yards of rubble backing on the ground which had already been severed from the bowlders, and that it was appropriated by appellant. It is well known that rubble stone is of irregular shapes and sizes, broken from larger stone in the process of quarrying or preparing the same for market. It is used in masonry for filling in between other courses of cut stone or for backing. While rubble backing cannot be prepared into cut stone, and is not expensive, it has a value. Its severance from the ledge made it personal property, and the proper measure of damages is its value at the place where appropriated. In determining that value it will not be necessary to consider the cost of manufacturing and transporting the same as in Lehigh Coal Co. v. Railroad Co., 187 Pa. 145, because its value can be easily and definitely fixed at the place of its location when the appropriation was made.

The fourth, fifth, sixth, seventh, eighth and ninth assignments of error are sustained.

Judgment reversed with a venire.